paul kavulaye mgonja vs tanzania electric supply co ltd 2014 tzhc 2373 19 june 2014

LABOUR DIVISION . ;v .x; ' to AT MBEYA s w LABOUR REVISION NO. 36 OF 2013 PAUL KAVULAYE MGONJA................... ......^APPLICANT VERSUS.%. M TANZANIA ELECTRIC SUPP^CO.LTp......... RESPONDENT 1 J? " #

JUDGEMENT 16/06/2014 & 19/06/201% Aboud, 3 The: application is made under section 91(l)(a) and 94(l^(b)(^fof the Employment and Labour Relation Act, No. 6 of 2004, 'Rule 24(1) and 28(l)(d) and (e) of the Labour Court Rules G.N No. 106 of 2007. The applicant calls upon this court to call for the record and revise the proceeding and set aside the award of the Commission for Mediation and Arbitration (CMA), in the CMA/MBY/47/2011 at Mbeya dated 03/12/2010. Briefly the background of this application is that on 25/03/2011 the applicant filed an application for condonation at the CMA seeking leave to file his complaint out oFtSfne. Among the reasons the applicant advanced for the delay s is the H- correspondence between him and the respondent on how to settle the dispute. The reason that arbitrator found to be insufficient to condoned the However the arbitrator noted that the app|jean%efQfrals, CMA FORM 1 and CMA FORM 7 were not signed as required by Rule 5(1) of the Labour Institutions (Mediation arid Arbitration) Rules, GN. 64 of 2007, therefore he dlsjpissed the application. Applicant was dissatisfied with the decision hence this revision. Duriffiy^W tiearing both parties were represented, Mr. Baraka Jyft^jf^jb’ersonal air representative represented the applicant while the,.„respondent was represented by Mr. Ndegi, learned S’ Courier Arguing the application Mr. Mbwilo raised two

grounds for the revision and prayed to adopt the applicant affidavit in support of the application to be part of their submission. 2 |P ag e Arguing the first ground for revision Mr. Mbwilo, submitted that the CMA was wrong to dismiss the application for condonation on the ground that CMA FORM. 1 and CMA FORM. 7 were not signed. He said the remedy available for such .defect ■r. was to struck out the application for condonatiorjjfand not to dismiss as the arbitrator did. He supported his argumef^with the case of Thomas Deus Kapele vs. Insp&qjtor General of Police & Others, Civil case No. 103 of|j20(J4f HC Dar es Salaam (Unreported), where ShangwaJ/field; ".... the plaintiff's plaint is ‘n o t acSptable for lack of authentication. The defect cbnnot be^overlooked by the court and cannot be cured by it.... .^IjStritce out the plaintiff's suit." As to the second ground for revision Mr. Mbwilo submitted that the arbitrator erred to hold that the advanced reasons in the Ms -i application for ^ndwiation was insufficient while the applicant tendered e^6ugt| evidence at the CMA. He further said, the fact that th# ^ ppM nt filed both CMA F.l and CMA F.7 and the afbitrator?f<fund that CMA F.7 was filed prematurely he ought to " h i .fiF have Sfitertained the complaint as filed by CMA F.l Hence he prayed the application be allowed. In response from the submission of the applicant on the

first ground, Mr. Ndegi strongly submitted that the arbitrator was right to dismiss the application as it failed to meet the mandatory requirement of Rule 5(1) (a) of GN. 64 of 2007. So on the eyes of law there was no application before the CMA andfhe remedy available was to dismiss the entire application. In regard to the second ground for .Revision Mr. Ndegi submitted that the main application wgsMo determine the - application for condonation as reflected^on the record. However . '..r the arbitrator determined such,apprii|atiol which was not properly filed before the court as the pf&eding# found not to bear signature of the applicant. Therefore he prayed the application be dismissed. ,§b I have gone tfiough the submission of both parties, court record as vyelf as- the"relevant labour laws and I find the point for determjri^grNs4vhether the arbitrator erred in law to dismiss the "1^ ap|^icant%3£>lication for condonation. Pfexamined the CMA records and it is apparent on the face of it that CMA FORM.l and CMA FORM. 7 were not signed by the applicant or of his authorized agent according to labour laws. The arbitrator also observed this in his ruling where he said; 4 |P age "furthermore the applicant did not sign CMA F .l and CMA F.7 as required to do under Rule 5(1) of the Labour Institutions (Mediation and Arbitration) Rules 2007, GN. No. 64 of 2007." However the arbitrator

proceeded to hear and determined the application. Rule 5(1) of the Labour Institutions (Mj^diatf8| and rJSL> - '.*A- Arbitration) Rules, GN. 64 of 2007 provide that; "5(l)document shall be signed by the party or any other person entitled undeii the Act or these rules to present that pfity in the proceedings" A ," ' 4m* !?k sz Moghan in his book, ^ W QF PLEADINGS IN INDIA, 16th ed. p. 54 gives the following comment regarding the objective of verification^ the pleading that; "....... signatures are necessary to show that 1,-. || the pleSdihg has been filed with the knowledge J andt approval of the party, the object of If" v- verification is to fix responsibility for the ^statements made therein upon someone before the court proceeds to adjudicate upon them". This position was adopted by this court in the case of Usangu Logistics (T) Ltd v. Tanzania National Road Agency & Others Commercial case No. 58 of 2007 (Unreported), The question here is what is the remedy of failure to sign pleadings (CMA F .l and CMA F.7) at the CMA? Accordthg to Moghan (supra) at p. 55 said; "Want of signature or verification oc pny defect in either will not make the pleading void, and the suit cannot be dismissed, no? can a defense be struck out simply for vyantofor a defect in the signature or verification of the plaint or '•hri. written statement astbese are matters of ,4c- procedure only. ?The defect

may be cured by amendment v>at'any stage of the suit." S>. This reasoning jhas been followed by the courts in this country. Tntis. ''1 Philip Anania Masasi Vs Returning Officer, Njombi *N^rEh Constituency, The Attorney General & Jat$tsonJMakweta (Misc. Civil Cause No. 7/95 (unreported) Samatra JK (as he then was) held: - "As I apprehend the law, want of or defect in verification does not make a pleading void, it is a mere irregularity which is curable by amendment." Principles laid down in the above referred authorities in my view though they are for the civil matters other than Labour dispute can be applied with the situations or cirqufnstancg •'■” ’J- like ^'4,. this matter where there is no provision of the law thaf properly guides the labour institutions established by the. law what should be done when such material irregularities occurred. Therefore basing on the above, ,|0t%pr|tfes the arbitrator in my view is not strictly bound?to t|e technicality being a quasi j "-’H i, - j - - judicial officer ought to ha\% guided the applicant before he admitted the application or complaint that the pleadings were to be signed. Thus the aroitraljpr would have ordered the pleadings be amended before^ proceeded to determine the application for condonation .wWih,yyas not signed (CMA F.l and CMA F.7). That was a njateri^Mjfegularities which goes to the root of application as on the Bye's

of the law it is the same as there was no appli^tjsih before the CMA. Having discussed as I did I find no need to labour much on the other ground for revision after I observed the above material irregularities which nullifies the whole proceedings of the arbitrator. It has to be noted that the applicant did file the first application for the condonation to the CMA which it wj|s not entertained on the reasons that was premature to th#€ofrirrfission because the applicant was within time to file his complaint, this is reflected in the arbitrator's ruling at page 3 aS^gfrrectly submitted by the applicant counsel. I reiterate that th^dutfNitf the CMA is also to provide guidance to the parties i^dis|u!e as the arbitrator was supposed to do when herfre^ize& Wat the applicant was within time to file his complJnt an|’*tHere was no need to file application for condonation a iSfeHir did. Had it been that was prudently done by the^rbijtrator what is before this court would have not reached here atfeli. Both the CMA and the court need *rr to act in a riann|r that is considered expedient in the circumstanlf| tc| achieve the objects of the Employment and Labour^Rfl^ghs Act, No.6 of 2004 and the good ends of justice. 4s, C J# ^^htfp^these two institutions are established to deal with labounmatters in this land are equally supposed to produce the just decision out of the law and to expound the

reasons for it in terms that conform with the law and add to it. This is justice according to law. 8 |Page In the circumstances I invoke the power vested in this court under section 94(3) (a) (ii) of the Employment and Labour Relation Act, No. 6 of 2004 and Rule 55 (2) of the Labour-.Court j»V Rules, GN. No. 106 of 2007 to refer the comjjJaint to Jthe commission to commence afresh out of time. It is so ordered. I.D.ABOUD •i-* JUDGE 'twi % _<*f* 19/06/2014